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Second Circuit Updates – August 24, 2016 – Part 1

The Circuit issued three Opinions today that are relevant to people litigating issues of criminal law. Below is a brief description, which will be followed up with more discussion later.

I. In Pierotti v. Walsh, No.15-1944-pr (Circuit Judges: Pooler, Livingston, and Lohier), the Circuit ruled in favor of a State prisoner. It holds that his claim of ineffective assistance of counsel, presented under 28 U.S.C. § 2254, is not procedurally barred.

The petitioner in the case was hearing impaired since childhood and required two hearing aids. His last hearing aid was destroyed while he was in jail awaiting trial. The ineffective assistance of counsel (“IAC”) claim was that his trial lawyer did not take measures to ensure his hearing disability was accommodated at trial, so he could not understand much of what was occurring.

The IAC claim was not raised on direct appeal. But it was presented in a state-court collateral proceeding — a motion to vacate the judgment under N.Y. Crim. Proc. Law § 440.10. Pierotti’s state 440 motion presented 12 exhibits that had not been part of the trial record, including an affidavit from his trial counsel describing Pierotti’s difficulties hearing during the trial, an affidavit from an expert audiologist relating how the courtroom in which he had been tried would have made it hard for him to hear, and affidavits from Mr. Pierotti and family members who watched the trial describing his hearing problems during the trial.

The State judge, however, denied the 440 motion on the procedural ground of § 440.10(2)(c): that there were sufficient facts on the record to permit the IAC claim about the hearing impairment to have been raised on direct appeal. The district court held the State 440 court’s invocation of a procedural bar precluded a federal court from considering the IAC claim in a petition for a writ of habeas corpus under 28 U.S.C. § 2254.

The Circuit reversed, however. It held that the case fell “within the limited category of exceptional cases where the ‘exorbitant application of a generally sound rule renders the state ground inadequate to stop consideration of a federal question.’” (quoting Lee v. Kemna, 534 U.S. 362, 376 (2002).

II. In United States v. Owen Edwards, No. 15-741-cr (Circuit Judges: Sack, Raggi, and Droney), the Circuit rules against the appellant on an appeal from a judgment revoking supervised release and imposing a sentence of 24 months in prison.

Appellant challenged the district court’s jurisdiction to adjudicate an allegation he had committed a crime while on supervision because he was impermissibly charged “after the scheduled expiration of his supervision term,” and this violated 18 U.S.C. § 3583(i). The Circuit ruled against him in a 52-page opinion but states: “We conclude only that where, as here, post-supervision charges involve conduct related to the requisite timely charge and the defendant is afforded adequate notice and opportunity to be heard, the district court is empowered to consider the related violations and to base revocation thereon.”

III.United States v. Hisan Lee, et al., Nos. 11-2539; 11-2543; 11-2834; 11-4068 (Circuit Judges: Cabranes, Pooler, Lynch). The Circuit holds that the evidence at trial was sufficient to prove the interstate commerce element of Hobbs Act robbery (18 U.S.C. § 1951) because a jury could find that the robberies targeted suspected marijuana dealers for their drugs or the money from their marijuana sales.